### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE September 19, 2000 S ession STATE OF TENNESSEE v. BERNAR D JEROME JONES Appeal from the Criminal Court for Davidson County No. 98-C-2015 Cheryl Blackburn, Judge

No. M2000-00018-CCA-R3-CD

### - Filed Octobe r 20, 2000

The defendant was c

onvicted by

a Davidson County

jury of possession with intent to sell or deliver 0.5 grams or more of

cocaine. The tr

ial court sentenc

ed defendant to 1 6 years inc arceration as a Range II multiple offender. In this appea l as a matter of right, defendan t make s the following allegations of error: (1) the evidence was insufficient

to support a finding of guilt; (2) the trial court erred by ruling that if defendant testified, the state could impeach his cr e dibility by introducing defendant’s prior drug convictions; and (3) the trial court erred in se

ntencing defe

ndant to16 years incarceration . After a thoroug h review of the r

ecord, we affi

rm the judgment of

the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined. Glenn R. Funk (at trial) and Jennifer Lynn Thompson (on appeal), Nashville, Tennessee, for th e appellant, Berna

rd Jerome Jones. Paul G. Summers, Attorney General and Reporter; David Findley, Assistant Attorney General ; Victor S. Johnson, III, District

Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The appellant was convicted of possession with in

tent to sell or deliver 0.5 grams or more of cocaine and sentenced to 16years incarceration as a Range II multiple offender. The defendant filed this appeal a

s a matter of right

alleging the follow

ing errors: (1) the evidence

was insufficient

to support a finding

of guilt;2

(2) the trial court er

red by ruling that i

f defendant test

ified, the state

could impeach his credibility by introducing defendant’s prior drug convictions; and (3) the trial court erred in sentencing defendant to 16 years incarceration. Upon careful re

view of the reco

rd, we affirm the

judgment of the tria

l court. I. FACTS The defendant was present at the residence of Ge

rald Dorris and r

oommate, Chris Schu

tt, on March 18, 1998. Dorris testified that defendant stopped by unexpectedly a

nd ate dinner with

them. Dorris or Schutt inquired if anyone had any cocaine. Schutt testified that defendant responded that he possessed cocaine. Lieutenant

Melvin Brown, acc

ompanied by additio

nal officers,

appeared at the

residence to serve an arrest warr

ant on Dorris. Imme

diately after entering the residence, Brown saw defendant place his hand quickly inside his pocket. Brown grabbed defendant by his arm and seized cocaine from his hand. The cocaine

consisted of one bag filled with eight individual bags of rock cocaine, weighing 4.7 grams, plus one bag of powder cocaine, weighing 1.2 grams. Defendant wasarrested, and $345.00 in cash was found in his possession. Officers also seized two glass test tubes, a glass plate with white powder on it, a metal crack pipe, a metal crack pipe

cleaner, a pair of

forceps, a spoon with white residue on it, and marijuana. No measuring scales were seized from the location. Both Dorris and Schutt te stified for the de

fense. Both

test ified they intended to use drugs with the de fendant, but that d efendant had not

asked to be paid f

or the drugs. Neit

her obse rve d defendant attem

pt to sell drugs that e

vening. The defe

ndant did not testify

at trial. Based on the evidence, thejury convicted the defendant of pos session with intent to sell or deliver 0.5 grams or more of cocaine. This appeal followed. II. SUFFICIENC

Y OF THE EVIDENCE The defendant conte

nds that th e evidence is insu fficient as a mat

ter of law to susta

in his conviction for possession with intent to sell

or deliver 0.5 grams or more of cocaine. We disagree. A. Standard of Review When an accused cha

llenges the suff

iciency of

the evidence, th

is court m

ust re view the record to determine if

the evidenc e adduced du ring the tri al was suffi cient "to su pport the f indings

by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P . 13(e). This rule is3

appl icable

to findings of guilt predicated upon direct evidence, circumstantial evide nce or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Tenn. Crim. App.1996). In determining the

sufficiency

of the evidence

, this court does not

reweigh or re

evaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn.1978) . Nor may this cour t substitute its inferences for those d rawn by the t rier of fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this c ourt is required to afford the state the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from theevidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). B. Analysis Upon arrest, officers seized 4.7 grams of rock cocaine and 1.2 grams of powder cocaine from defendant. Nine small plastic bags were found on

defendant. The 4.7 grams of rock cocaine were divided into eight individual bags, and the 1.2 grams of powder cocaine were located in on e individual bag. Additionally, officers seized $ 345 in cash from de

fendant. This evi

dence is sufficient to support the verdict. Te nn. Code Ann. § 39-17-419 states that, “[i]t may be inferred from the amount of a cont rolled substance or substances possessed by an offender, along with other relevant fact s surrounding the arrest, that the controlled sub stance or substan ces were posses sed with the purpos e of selling or otherwi

se disp ens ing.” Accordingly, a jury can infer from the amount of controlled substances seized from a defendant, in addition to all other relevant facts surrounding the arrest, that a defendant intend

ed to sell or otherwise dispe

nse the substance

s. See State v.Chearis , 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999). Given that 4.7 grams of individually packaged crack cocaine, 1.2 grams of powder cocaine, and $345.00 were seized from the defendant, the evidenc e is sufficient to show beyond a

reasonable doub

t that defendant p

ossessed such subs

tances with the int

ent to sell or deliver them. T

his issue is without me

rit. III. ADMISSIBILITY OF PRIOR CONVICTIONS Defendant

claims that the trial court

erred by ruling th

at if defendant t

estified, the stat

e could impeach his credibility

by introducing his three prior drug convictions for attempted possession of cocaine over

0.5 grams for resale. This court has reached different conclusions as to whether prior drug convictions are suggestive of dishonesty. See State v. Brian Roberson , C.C.A. No. 01C01- 9801-CC-00043, 1998 WL 917804, at *7 (Tenn. Crim. App. filed December 21, 1998, at Nashville), perm. t o app. denied

(Tenn. May 13, 1999) (the act of drug dealing is suggestive of dishonesty); Sta te v. Jeffrey Walker , No. 01C01-9705-CC-00200, 1999 WL 961387, at *5 (Tenn. Crim. App. filed October 22, 1999, at Nashville) (se

lling drugs d

oes no t involve “dishones ty or false statement”). We need not resolve these conflicts in this case. Defendant

movedthe trial court

to disallow introduction of defendant’s record of prior drug4

convictions. The trial judge denied defendant’s motion indicating that she did not kn ow what defendant’s testimony would be, and further sta

ted that drug violations involve dishonesty. Although given an opportunity to do so, defendant failed to make an offer of proo f as to what his testimony would be; thus, we are unable to determine the nature of his proposed testimony. Accordingly, defendant has failed to demonstrate that he was prejudiced by the trial court’s ruling. See State v. Galmore , 994 S.W.2d 120, 125 (Tenn. 1999) (although an offer of proof is unnecessary to preserve this issue, it may be the only way to demonstrate prejudice). Despite defendant’s failure to make an offer of proof, this court will analyze defendant’s allegation of error. Defendant contends that drug sales are not pro of of dish onest behavior as contemplated by T

enn. R. Evid. 609; ac

cordingly, their p

robative value on

defendant’s cr

edibility as a witness is minimal while their prejudicial effect is great. Regardless of whether the prior drug convictions were admissible for impeachment

purposes, they were admissible to prove defendant’s intent to sell or del

iver the drugs. Te

nn. R. Evid. 404(b) s

tates, Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may , however, be admissible

for other purposes. The conditions which must be satisfied before allowing such evid ence are: (1) [

t]he court upon re

quest must

hold ahearing outside the jury’s presence; (2) [t]he court must determine tha

t a material issue ex

ists other than conduct conforming with a character trait and must upon request state

on the record the material issue, the ruling, and the reasons for admitting the evidence; and (3) [t]he court

must exclude the e

vidence if its probative valu

e is outweighed by the danger of unfair prejudice. Evidence of other crimes committed by the accused, that are similar to the crime charged, is relevant and admissible whe n it s hows the requisite criminal intent necessary to prove the crime charged. Statev. Alfred F. Hampton , No. 01C01-9301-CR-00041, 1994 WL 17063, at *3(Tenn. Crim. App. filed January 20, 1994, at Nashville) ( citing Mays v. State , 238 S.W. 1096, 1103 (Tenn. 1921)). In State v. Little , 854 S.W.2d 643 (Tenn. Crim. App. 1992), this court upheld the trial court’s admittance of an accomplice ’s t estimony concerning the defendant’s prior drug sales. This court found that the defendant’s prior bad acts rebutted his def ense that “he was merely a victim of circumstance and not the drug dealer that the state was attempting to paint him.” Id . at 649

. Additionally, this court concur red with the trial court’s determination that the probative value of the testimony outweighed any danger of unfair prejudice. Id

. This court also reached a similar conclusion in State v. Johnny Wayne Tillery , No. 01C01- 9506-CC-00182, 1998 WL 148326 (Tenn. Crim. App. filed March 30, 1998, at Nash ville), perm. to app. denied

(Tenn. December 14, 1998). In Tillery , the defen dant ap pealed the trial court’s decision to admit

testimony and audio tapes revealing defendant’s participation in prior drug sale

s. Id

. at *7. This court upheld the trial court’s finding that the evidence that connected the defendant to prior drug sales had sufficient probative value to outweigh any unfair prejudice, and the pattern of prior drug sales was probative of the defendant’s knowledge and intent to possess co c aine for5

resale. Id

. In the present case, defendant did not dispute that he possessed cocaine; the crucial issue was whether he intendedto sell or deliver the cocaine. Evidence of defendant’s prior drug convictions is clearly relevant

to intent, and probative value would outweigh any danger of unfair prejudice. If these prior convicti

ons h ad been errone

ously admitted for i

mpeachment purpo

ses under Tenn. R. Evid. 609, their admission would be har mless error since the y were admissible

relative to defendant’s intent under Tenn. R. Evid. 404(b). IV. SENTENCING A. Standard of Review Finally, de

fendant contests

the length

of his sentence based upon the weight the trial court assigned to the enhancement factors. This court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is condition ed upon an af firmative showing i n the re cord that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). No particular weight

for enhancement

and mitigating factors is prescribed by the statute, as the weight given to each factor is left to the discret ion of the trial c

ourt as long as the trial court complies with the purposes and principles of the sentencing act and its findings are

supported by the record. St ate v. Moss , 727 S.W.2d 229, 238 (T enn. 1986); State v. Leggs , 955 S.W.2d 845, 84 8 (Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210 Sentenc ing Commission Commen ts. B. Analysis The trial court founddefendant to be a Range II offender and, after applying enhancing and mitigating factors, sentenced him to 16 years inc arceratio n. As defined by statute, a Range II offender found guilty of a Class B felony is subject to a sentence of “not less than twelve nor more than twenty

years.” Tenn. Code Ann. § 40-35-112(b)(2). The defendant was convicted of three prior Class C felonies, each

felony resulting from criminal acts that occurred in separate twenty-four hour periods. Defendant was p roperly classified as a Range II multiple offender. See Tenn. Code Ann. §40-35-106(a)(1), (b)(4). The trial judge first used eleven prior misdemeanors to enhance the sent ence. See Tenn. Code Ann. § 40-35-114(1) (prior criminal convictions). The trial court could have also used one of the prior drug felony convictions as an enhancement factor because only two of defendant’s pr i or felony convictions were needed to establish him as a Range II offender. Th e tri al court also enhanced defendant’s sentence since “the defendant has a pr evious history of unwillingness to comply with the conditions of a sentence involving release in th e community.” Tenn. Code An n. § 40-35-114(8). Defendant previously violated conditions of6

community

corrections when he failed to attend a drug program, and defendant later violated probation when he tested positive for drug use. The trial court properly applied this enhancement factor. The trial c ourt sentenced defendant to the mid-range sentence of 16 years. As discussed previously, the weight given each factor is subjec

t to the trial court’s discretion. Moss , 727 S.W.2d at 238. We find the tr

ial court properly followed the sentencing guidelines, and the sentence imposed was well within its discretion. This issue is without merit. CONCLUSION Based on our review of the record, we conclude that (1) the evidence

was sufficient to

sustain the conviction; (2) defendant was not prejudiced by the trial court’s ruling regarding admission of his prior convictions; and (3) the length of the sentence was proper. Accordingly, the judgment of the trial court is affirmed.

______________________ JOE G. RILEY, JUDGE



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE September 19, 2000 S ession

### STATE OF TENNESSEE v. BERNA RD JEROME JONES Criminal Court for Davidson County

No. 98-C-2015

No. M2000-00018-CCA-R3-CD

JUDGMENT

Came the a

ppellant, BERNARD JEROME JONES, by counsel, and the state, by the A ttorne y General, and this case

was heard on the record on appeal from the Criminal Court of Davidson County; and upon consideration thereof, this Court is of the opinion that there is no reversible error in the judgment of th

e trial court. It is, therefore, ordered and adjudged by this Court that the judgment of the tria

l court is affirmed, and the case is remanded to the Criminal Court of Davidson County for execution of the judgment of that court and for collection of costs accrued below. It appears that appellant is indigent. Costs of appealwill be paid by the State of Tennessee.

Per Curiam Joe G. Riley, Judge David H. Welles, Judge Norma McGee Ogle, Judge